Complainant Ashok Kumar vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite parties to replace with new brand mobile. Opposite parties be further directed to pay Rs.20,000/- as compensation on account of harassment and mental agony alongwith Rs.15,000/- as litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that he has purchased a mobile Sansui Euphoria, Android 3 G phone U55 (GUR)/Gray color through online shopping vide order no.20151202077463 docket no.396825428975 from the opposite party no.1 at home delivery as surprised gift for his wife on his marriage ceremony.  Soon after the purchase, the mobile was not working properly. He felt some problem in the battery of the mobile as well as in the mobile phone and he reported the matter to the opposite parties. Thereafter the opposite parties demanded DOA certificate from him and accordingly he sent DOA certificate through E-mail on 9.12.2015, 14,12,2015 and again on 22.12.2015 and copy of the same also given to the opposite party no.2. The opposite parties told him that they will replace the mobile with new one within two or three days but till today no action has been taken by the opposite parties regarding replacement of the mobile and putting the matter one and other pretext. Hence this complaint.

3.       Upon notice, the opposite party no.2 appeared through its counsel and filed its written version taking the preliminary objections that the present complaint is not maintainable. On merits, it was admitted that as per the policy of the company, if a mobile is found defective within seven days of billing/purchase then on issuance of the DOA certificate by the authorized service centre of the company, the retailer or the dealer from where the mobile has been purchased by customer would immediately change the defective mobile with a new mobile phone and the dealer or retailer can get the new mobile in turn of defective mobile from the mobile company latter on. It was submitted that complainant approached the opposite party on 8.12.2015 with complaint in his newly purchased mobile phone and told about the defect in his mobile. As per the policy of the company, as the mobile was found defective within seven days of purchase of the mobile phone the opposite party issued a DOA certificate to the complainant on the same day and told complainant that he should deposit the mobile with the dealer or retailer from where he has purchased the mobile phone alongwith the DOA certificate and collect a new mobile phone in place of defective mobile from the dealer or retailer from where complainant has purchased the mobile phone. The opposite party has done his part of duty by immediately issuing the DOA Certificate to the complainant. Service is to be provided as per the terms and conditions of the company. There is no deficiency of service on the part of the opposite party. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.       Notice issued to the opposite party no.1 had been received back with the report of refusal. Case called several times during the day but none had come present on its behalf, therefore, it was proceeded against exparte vide order dated 26.4.2016.

5.       Complainant tendered into evidence his own affidavit Ex.CW1/A along with the other documents exhibited as Ex. C1 to Ex.C6 and closed the evidence.

6.        On the other hand, counsel for the opposite party no.2 tendered into evidence affidavit of Sh.Inderjit Singh son of Avtar Singh Ex.OP-1 and closed the evidence.

7.     We have carefully examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while at the same time also taking the due judicial-notice of the OP1 vender’s intentional ‘ex-parte’ participation, in spite of the ‘proven’ summon-service through the prescribed ‘Registered AD’ post. Although, it has been a settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee(s) litigant(s) has no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte absentee OP1 vendor by way of a close examination and a fairly deduced ‘resume’ upon which to place/ base the resultant award under the adjudicatory Act.

8.       We find that the present complaint has arisen as a result of the quick ‘dysfunction’ of the ‘Sansui –Euphoria’ make mobile hand-set within the Warranty Period as purchased from the OP1 Vendor on 03.12.2015 vide Cash Memo # 20512030618 for Rs.5,068/-. The OP2 Service Provider has admittedly kept the Mobile in question with him and issued the requisite DOA Certificate that has been duly submitted with the OP1 vendor for issuance of the new piece of Mobile. Incidentally, the said Mobile has not been replaced since then and that amounts to ‘deficiency in service’ on the part of the titled OP1Vendor lining him up to an adverse award under the applicable statute. Moreover, the repeated mails to the OP1 Vendor by the complainant for replacement of his mobile hand-set in itself proves the deficiency in service.       

9.       In the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite party 1 Vendor to replace the mobile with a fresh new piece or to refund the full invoice-cost of the Mobile set to the complainant besides to pay him Rs.2,000/- as cost and compensation. The entire cost of the award may be borne by the OP1 vendor who shall be solely liable to comply the present orders and the exercise shall, by all means be completed/exhausted within 30 days of the receipt of the copy of these orders otherwise the above OP shall also be liable to pay interest @ 9% PA from the date of the present orders till actually paid

10.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record. 

          (Naveen Puri)

                                                                             President   

Announced:                                                    (Jagdeep Kaur)

July 22, 2016                                                         Member

*MK*